Palm Beach Motoring Accessories, Inc.

Trademark Trial and Appeal Board

Aug 12, 2013

No. 85264259re (T.T.A.B. Aug. 12, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
August 12, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Palm Beach Motoring Accessories, Inc.
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Serial No. 85264259
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Request for Reconsideration

Leo Zucker of Law Office of Leo Zucker for Palm Beach Motoring Accessories, Inc.

Giancarlo Castro, Trademark Examining Attorney, Law Office 110 (Chris A.F.
Pedersen, Managing Attorney).
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Before Bergsman, Wellington and Adlin, Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Palm Beach Motoring Accessories, Inc. (“applicant”) seeks registration of the
mark AUTOPIA CAR CARE, in standard characters and with CAR CARE
disclaimed, for “On-line retail store services featuring products for cleaning,
polishing and detailing motor vehicles” and “Providing on-line publications in the
nature of instructional guides in the fields of cleaning, polishing and detailing motor
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vehicles.”1 The examining attorney refused registration of the mark under Section
2(d) of the Act, on the ground that applicant’s mark, when used in connection with
applicant’s services, so resembles the previously-registered mark AUTOPIA in
typed form for “automobile repair and service” as to be likely to cause confusion.2
On July 2, 2013, the Board issued a final decision (the “Final Decision”) affirming
the refusal to register, and on August 2, 2013, applicant filed a motion for
reconsideration of the Final Decision.
Applicant argues in its motion that it was improper for the Board to give no
weight to third party Registration No. 2969995 for the mark AUTOPIA for
“Amusement park services.” Specifically, applicant argues that the mark in that
registration is in fact used for an amusement park ride at Disneyland and other
Disney amusement parks in which riders steer cars around tracks. Applicant
submits evidence concerning this ride for the first time and separately requests that
the Board take judicial notice of the file of that registration, including a specimen
depicting the Disneyland ride. Based on this evidence, applicant argues that “[t]he
scope of protection afforded by AUTOPIA should therefore be relatively narrow and
not encompass services that differ significantly from those of a given user.”
Applicant further argues that the words CAR CARE distinguish its mark from the
cited mark, that two of the third-party registrations upon which the examining
attorney relied to establish the relatedness of applicant’s and registrant’s services

1 Application Serial No. 85264259, filed March 11, 2011, based on first use dates of
April 21, 1999.
2 Registration No. 2046127, issued March 18, 1997; renewed.
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have been canceled and that none of the third-party registrations introduced by the
examiner includes online retail store services featuring vehicle detailing products or
providing online instructional guides in the field of detailing. Finally, applicant
points out that while the owner of the cited registration offers hand car wash
services, it does not offer online retail store services featuring vehicle detailing
products or online instructional detailing guides.
“[T]he premise underlying a request for … reconsideration … is that, based
on the evidence of record and the prevailing authorities, the Board erred in reaching
the decision it issued. The request may not be used to introduce additional
evidence, nor should it be devoted simply to a reargument of the points presented in
the requesting party’s brief on the case.” TBMP § 543 (3d ed. rev. 2013); see also,
TBMP § 1219.01. Here, in addition to attempting to introduce additional evidence
and rearguing points presented in its Appeal Brief, applicant has not established
that the Board erred in the Final Decision.
There was no error in finding Registration No. 2969995 irrelevant, because
we must limit our consideration to the identification of services included in that
registration, in this case “Amusement park services.” See generally, In re Bercut-
Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986). See also, Tuxedo
Monopoly, Inc. v. General Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981); In re Thor Tech Inc., 90 USPQ2d 1634, 1637-38 (TTAB 2009). There
is no evidence in the record that, as applicant now contends, AUTOPIA is in fact
used for an amusement park ride featuring automobiles, and it is too late to
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introduce such evidence or take judicial notice of anything now. Trademark Rule
2.142(g).3 In any event, in the Final Decision we assumed “that AUTOPIA is
somewhat suggestive of, and that it is not entitled to an exceedingly ‘wide scope of
protection’ for, automobile-related products and services,” so even were we to
consider Registration No. 2969995 in the manner proposed by applicant, we would
still affirm the examining attorney’s refusal of registration.
Applicant’s argument that CAR CARE distinguishes its mark from the cited
mark is unavailing, because as stated in the Final Decision, “applicant’s services
relate to caring for (i.e. ‘cleaning, polishing and detailing’) cars, and accordingly
applicant has disclaimed CAR CARE, which therefore has little significance in our
likelihood of confusion determination.” Final Decision at 4 (citations omitted).
Despite the apparent cancellation of two third party registrations which
helped to establish a relationship between automobile cleaning-related services on
the one hand and automobile repair or maintenance services on the other, at least
12 remain, which is more than enough to establish the relationship between these
services. It simply does not matter that none of the third-party registrations
include the exact services for which applicant seeks registration. The point is that
automobile cleaning-related services, such as applicant’s, are related to automobile
repair services, such as registrant’s. Furthermore, as pointed out in the Final
Decision at pages 6-7, “the service component of registrant’s ‘automobile repair and

3 Of course, even accepting applicant’s representations about the Disney ride as true,
the AUTOPIA mark is still used for a ride rather than anything related to consumer
automobiles.
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service,’ which is unlimited in scope, could encompass automobile ‘cleaning,
polishing and detailing’ services, which are closely and directly related to, and
indeed the subject of, applicant’s online services.” In any event, applicant made the
same argument in its briefs, and is simply rearguing the point now, which is
improper. Applicant’s Appeal Brief at 4; Applicant’s Reply Brief at 2. And even if
we accept applicant’s assertion that the owner of the cited registration does not offer
the exact same services as applicant, that is simply irrelevant, the point being that
its services are related to applicant’s.
Decision: For all of these reasons, applicant’s motion for reconsideration is
denied.